Quirk v. Town of New Boston

• Decision Date: 14 August 1995
• Docket Number: No. 94-100,94-100
• Citation: 663 A.2d 1328,140 N.H. 124
• Parties: Thomas P. QUIRK d/b/a Friendly Beaver Campground v. TOWN OF NEW BOSTON.
• Court: New Hampshire Supreme Court

Page 1328

663 A.2d 1328

140 N.H. 124

Thomas P. QUIRK d/b/a Friendly Beaver Campground v. TOWN OF NEW BOSTON.

No. 94-100.

Supreme Court of New Hampshire.

Aug. 14, 1995.

Stanton E. Tefft, Bedford, and Douglas & Douglas, Concord (Mr. Tefft, on the brief and Charles G. Douglas, III, orally and on the brief), for plaintiff.

Nixon, Hall and Hess, P.A., Manchester (Francis G. Murphy, Jr., on the brief and Leslie C. Nixon, orally and on the brief), for defendant.

JOHNSON, Justice.

Both the defendant, the Town of New Boston (town), and the plaintiff, Thomas P. Quirk, appeal from a decision of the Superior Court (Hampsey, J.) involving the town's zoning ordinance and the plaintiff's campground. The court rejected the plaintiff's arguments that the town's zoning ordinance is unreasonable, effects a taking, denies him equal protection of the law, and interferes with his vested property rights. The court also rejected the town's request for attorney's fees but granted its request for costs. We affirm.

The plaintiff purchased his 85.77-acre campground in 1979 for $125,000. The prior owner had built twenty-nine campsites on the property after receiving the required State approval. Without seeking State or local authorization, the plaintiff further developed the land. Nine years later, the campground had approximately 130 campsites, each with water, sewer, and electrical hookups, and several tent sites with limited utility hookups. In April 1987, the New Hampshire Water Supply and Pollution Control Commission inspected the plaintiff's property and discovered the unapproved expansion of the campground as well as extensive sewage violations. The commission ordered the plaintiff to either comply with State regulations or cease operating his campground.

In 1987 and 1988, the plaintiff borrowed money largely to finance the campground improvements required by the commission's order. He did not wait for State or local approval of his improvement plans before obtaining the loans and making some of the expenditures.

The trial court found that the plaintiff did not file a formal application for subdivision approval until January 23, 1989. In this application, he requested permission to maintain 167 campsites and twenty-three tent sites. On May 15, 1989, the State approved only 123 campsites and twenty tent sites. Between April 1989 and August 1990, the State also approved the plaintiff's construction and operation of four septic systems.

In March 1989, the town enacted the zoning amendment that is at issue in this case: a "buffer zone" requirement for recreational campgrounds. The buffer zone is comparable to a setback line; it prevents certain land development within a minimum distance of campground perimeters. The first version of the amendment required a 300-foot buffer, but the town later decreased the buffer to 200 feet. The ordinance prohibits buildings, recreational facilities, trailer spaces, campsites, and tent sites in the buffer zone. The inner 100 feet may be used for any other purpose, including underground utilities. Natural vegetation must be maintained on the outer 100 feet.

In 1990, the town rejected the plaintiff's applications for a building permit and a variance for the construction of a new recreation hall that would encroach on the buffer zone. The plaintiff then filed suit against the town. He claimed that the buffer zone requirement is unreasonable, effects an unconstitutional taking of his property, violates his right to equal protection, and impairs his vested right to develop the land within his campground's buffer zone. On December 13, 1993, after a week-long trial, the superior court ruled in favor of the town. Later, the court granted the town's motion for costs but denied its motion for attorney's fees.

"On appeal, we sustain the findings and rulings of the trial court unless they are lacking in evidential support or tainted by error of law." Southern N.H. Water Co. v. Town of Hudson, 139 N.H. 139, 141, 649 A.2d 847, 848 (1994) (quotation and brackets omitted). In the proceedings before the trial court, the plaintiff relied solely on the State Constitution. Because this court will not consider on appeal issues or arguments not raised below, Perron v. City of Somersworth, 131 N.H. 303, 305, 553 A.2d 283, 284 (1988), we will not consider the Federal Constitution in our examination and will cite law from other jurisdictions only to aid our analysis.

I. Due Process

The plaintiff argues that the buffer zone requirement is arbitrary and unreasonable because: (1) its enactment was first suggested by a town selectman, Willard Dodge, and did not issue from formal investigation or research regarding campgrounds; and (2) it was intended primarily to address anticipated problems that might arise with the development of new campgrounds. We find the buffer zone requirement to be reasonable.

Substantive due process requires that zoning restrictions be rationally related to legitimate town goals. See Asselin v. Town of Conway, 137 N.H. 368, 372, 628 A.2d 247, 250 (1993). In Caspersen v. Town of Lyme, 139 N.H. 637, ----, 661 A.2d 759, 766 (1995), Chief Justice Brock opined in a special concurrence that, "given the appropriate occasion," we should review this standard. Because the parties before us have not briefed or argued this issue, we are not faced with such an occasion at this time; hence, we leave for another day a consideration of the proper standard.

In arriving at a decision to enact a regulation, a town may properly consider the town selectmen's and planning board members' "knowledge concerning such factors as traffic conditions, surrounding uses, etc., resulting from their familiarity with the area involved." Vannah v. Bedford, 111 N.H. 105, 108, 276 A.2d 253, 255 (1971) (zoning board of adjustment decision regarding variance), overruled on other grounds by Cook v. Town of Sanbornton, 118 N.H. 668, 671, 392 A.2d 1201, 1203 (1978). A town must consider current as well as anticipated realities when enacting zoning regulations. Cf. Patenaude v. Town of Meredith, 118 N.H. 616, 621, 392 A.2d 582, 585 (1978) (planning board approval of subdivision plan). In reviewing the reasonableness of a particular zoning provision, we are mindful that zoning is a legislative function, Britton v. Town of Chester, 134 N.H. 434, 441, 595 A.2d 492, 496 (1991), and "[j]udging the wisdom of the legislation ... is not the function of this court." Sedgewick v. City of Dover, 122 N.H. 193, 198, 444 A.2d 490, 492 (1982). "Given the presumption that zoning ordinances are valid, we consider whether the evidence supports the trial court's decision upholding the provision." Asselin, 137 N.H. at 372, 628 A.2d at 250 (citation omitted).

The trial court found that before proposing a buffer zone requirement, Selectman Dodge "set forth his own camping experience, stating that campgrounds tend to be noisy since they are 'recreational destinations' with activities running well into the evening. He also described their intensity of land use; i.e. the concentration of campsites within a relatively small area." The town's decision to adopt Selectman Dodge's suggestion was not arbitrary, but rather came after serious deliberation. Minutes of planning board meetings reveal that the planning board members engaged in "much discussion ... with the public present." During this discussion, the board members considered the various problems created by the particularly intensive land use associated with campgrounds. They concluded that a buffer was necessary to avoid unsightliness, contain noise, and "partially protect abutters from the rapid spread of fire or other peril beyond the campground." These are legitimate, important town goals. See id. at 371, 628 A.2d at 249-50. That the town was primarily concerned with anticipated new campgrounds rather than the two existing ones is irrelevant. See Patenaude, 118 N.H. at 621, 392 A.2d at 585. In light of the extensive consideration given the buffer zone provision, we defer to the planning board's judgment as to its necessity and efficacy. See Sedgewick, 122 N.H. at 198, 444 A.2d at 492. We hold that the trial court did not err in finding the provision valid because it is a reasonable regulation consistent with the due process requirements of our constitution.

II. Unconstitutional "Taking" of Property

The plaintiff argues that the buffer regulation is onerous and substantially destroys the value of his property and, therefore, effects an unconstitutional taking without just compensation. We disagree.

Part I, article 12 of our constitution provides that "no part of a man's property shall be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people." By protecting the fundamental right to use, possess, enjoy, and dispose of one's property, this provision restricts municipal powers to regulate land use. Buskey v. Town of Hanover, 133 N.H. 318, 322, 577 A.2d 406, 409 (1990). However, "[i]t is beyond question that the zoning of property to promote the health, safety and general welfare of the community is a valid exercise of the police power which the State may delegate to municipalities." Id. And zoning ordinances, "by their very nature, restrict the use of property and adversely affect individual rights." Id. at 323, 577 A.2d at 410 (quotation omitted). A reasonable zoning ordinance, therefore, effects an unconstitutional taking only if its application "to a particular parcel denies the owner an economically viable use of his or her land." Id. at 322, 577 A.2d at 409. Conversely, "[r]easonable zoning regulations that limit economic uses of property, but do not substantially destroy the value of an individual piece of property, are constitutional." Id. at 324, 577 A.2d at 410 (quotation omitted).

To quantify the extent that a property's economic viability is diminished by government regulation, the court first must define the...